New antitrust reform bill charts one possible path for regulating big tech

As Democrats settle into control of both chambers of Congress, signs of the party’s legislative priorities are starting to manifest. So far, lawmakers’ interest in reimagining tech’s regulatory landscape appears to be alive and well.

Sen. Amy Klobuchar (D-MN) is out with a new proposal for antitrust reform that would create more barriers for big mergers and beef up federal resources for antitrust enforcement. Klobuchar’s bill, the Antitrust Law Enforcement Reform Act, seeks to address consolidation across industries, calling out “dominant digital platforms” specifically.

“While the United States once had some of the most effective antitrust laws in the world, our economy today faces a massive competition problem,” Klobuchar said. “We can no longer sweep this issue under the rug and hope our existing laws are adequate.”

Klobuchar now leads the Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights, a corner of Congress already signaling its interest on reform that would impact big tech.

The new bill would bolster the Clayton Antitrust Act, a 1914 bill that created a framework for the rules around competition that are still applied today. Specifically, it would amend that bill to reinterpret its standard for evaluating anti-competitive mergers, changing the language to prevent any deal that “create[s] an appreciable risk of materially lessening competition” rather than the current wording.

The aim is to catch potentially anti-competitive behavior earlier in the game — an outcome that would address the government’s current conundrum, in which federal regulators are now awkwardly reevaluating mergers that evolved into monopolistic behavior years after the fact.

The bill would also put the onus on merging companies to prove that they don’t pose a risk of reducing competition, taking that burden off of the government in specific cases. Those rules would apply to “mega-mergers” worth $5 billion or more and in which a company with 50% market share seeks to buy a current or potential competitor.

Klobuchar’s proposal also seeks to add a provision to the Clayton Act against conduct that puts competitors at a disadvantage — a rule that would address some of the murkier areas of anti-competitive behavior that stretch beyond outright mergers and acquisitions.

Citing lacking enforcement budgets, the bill also sets out a $300 million infusion for the Justice Department’s antitrust division and the FTC. At the FTC, that money would help create a new division within the agency for research on markets and mergers.

The bill will be co-sponsored by Senators Cory Booker, Richard Blumenthal, Brian Schatz and Ed Markey, all Democrats on the antitrust subcommittee. And while it’s a single party endeavor for now, the antitrust reform could attract support from Republicans in Congress like Missouri Senator Josh Hawley, who signaled his interest in antitrust changes that target large tech companies as recently as this week. Hawley also sits on the Senate’s antitrust subcommittee.

Klobuchar stops short of calling for large tech companies like Facebook and Google to be broken into their component parts, a move that has attracted some support from lawmakers like Elizabeth Warren and Bernie Sanders in recent years. In the midst of emerging multistate lawsuits targeting big tech companies, the FTC announced its own antitrust case against Facebook late last year, pushing for the company to be broken up.